Modern Slavery

Front matter

Modern Slavery

Dominika Borg Jansson - 978-90-04-28107-3 Downloaded from Brill.com04/05/2019 09:10:46AM via free access

International Studies in Human Rights

Contents

List of Abbreviations x

1 Introduction 1 Introduction 1 Purpose and Research Questions 3 Harmonization of Criminal Law within the Context of Human Trafficking 5 Approaches to the Study and Conceptualization of Human Trafficking 11 Outline 16

Introduction 18 Reasons for Choosing the Case Studies 18 Methodological Difficulties 23 Legal Transplants 25

CHAPTER 1 Introduction Introduction

Trafficking in human beings is one of the most serious offences of our time. It has been described as one of the main forms of organized crime.! The international community even defines the phenomenon as a modern form of slavery.2 The European Court of Human Rights (ECtHR) has also confirmed that trafficking in human beings cannot be considered consistent with international human rights law or with a democratic society.3 The International Labour Organization (ILO) estimates the overall number of people in forced labour to be 21 million.* Yet, worldwide there are only a few thousand convictions of traffickers every year.

It is not surprising, then, that states and the international community alike view trafficking as one of the most serious and acute problems of our time. Although the practice has been addressed in international law and numerous states have criminalized it,° the problem not only persists but also seems to be growing.® This book argues that an important part of the reason for this development is inherent in the wording of the relevant trafficking legislation.

1 “Communication from the Commission to the Council and the European Parliament — The Hague Programme: Ten Priorities for the Next Five Years. The Partnership for European Renewal in the Field of Freedom, Security and Justice’, [Com (2005)184 final — Official Journal C 236 of 24.9.2005] and “Trafficking in Human Beings’, Interpol Fact Sheet, http://www.interpol.int/ Crime-areas/Trafficking-in-human-beings/Trafficking-in-human-beings, (accessed 2014-05-12). See also “Human Trafficking: Organized Crime and the Multibillion Dollar Sale of People’, UNODC, 19 July 2012, http://www.unodc.org/unodc/en/frontpage/2012/July/human-trafficking _-organized-crime-and-the-multibillion-dollar-sale-of-people.html, (accessed 19 May 2014).

2 “Global Report on Trafficking in Persons’, UNODC and Global Initiative to Fight Human Trafficking (UN.GIFT), February 2009, http://www.unodc.org/documents/Global_Report _on_TIP.pdf, (accessed 19 May 2014).

3 Case of Siliadin v. France, (Application no. 73316/01), Judgment Strasbourg, 26 July 2005, and Case of Rantsev v. Cyprus and Russia, (Application no. 25965/04), Judgment Strasbourg, 7 January 2010, final 10 May 2010.

4 “ILO Global Estimate of Forced Labor. Results and Methodology”, 1L0, 2012, p. 13, http://www .ilo.org/wemsp5/groups/public/---ed_norm/---declaration/documents/publication/ wems_182004.pdf, (accessed 19 May 2014).

5 Itshould, however, be noted that criminal law alone will not solve the trafficking problem.

6 “Global Report on Trafficking in Persons’, 2009.

This is an open access chapter distributed under the terms of the prevailing cc-By-Nc License

According to international expert organizations such as the United Nations Office on Drugs and Crime (UNODOG), traffickers profit from inadequate national criminal legislation as well as from a lack of international cooperation.” In this context, harmonization of national laws has been presented as a first step toward solving or dealing with the trafficking problem. Consequently, the aim of the most important international document on trafficking in human beings, the Palermo Protocol,’ is to create an internationally binding definition of trafficking by harmonizing the relevant laws of the state signatories to the protocol.? Comments from the United Nations (UN), as well as from many other international organizations, indicate that the Palermo Protocol is perceived as a powerful instrument and one which will serve as a model for national legislations. In consequence, subsequent international law has largely drawn on the protocol’s definition of human trafficking.!°

The international definition of trafficking contained in Article 3 of the Palermo Protocol constitutes the core of this research,” which consists of two main parts. The first deals with the original source, i.e., the international definition of trafficking itself. The second part addresses the process of implementation of this definition in three different state parties to the Palermo Protocol. These analyses generate findings that can be divided into two categories. Both categories concern challenges to the implementation of the original source and the interpretation of the transplant. Firstly, there are certain problems that are experienced by all three countries. As I will illustrate, these are attributable to the wording of the international definition of trafficking. Secondly, there are challenges that are country-specific. These concern primarily how trafficking is conceptualized on the national level. Building on the findings mentioned above, recommendations are made on how the international

7 Ibid.

8 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the 2000 United Nations Convention against Transnational Organized Crime.

9 Legislative Guide for the Implementation of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the 2000 United Nations Convention on Transnational Organized Crime, Part 2, p. 267, hereafter the Legislative Guide.

10 See the definition of human trafficking in the EU Directive 201/36/EU of the European Parliament and of the Council of 5 April 201 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA. See also the Council of Europe Convention on Action against Trafficking in Human Beings that entered into force in 2008.

11 For the wording of Article 3 and an analysis thereof, see Chapter 4.

Dominika Borg Jansson - 978-90-04-28107-3 Downloaded from Brill.com04/05/2019 09:10:46AM via free access definition of trafficking might be improved. The suggestions range from simple to more far-reaching reforms, concluding with a proposal on how a trafficking provision might be framed.

When states struggle with anti-trafficking efforts, international advice often comes in the form of encouragement to adjust national laws to the international definition of trafficking and to increase the penalties for the crime. However, as will be shown, national laws that have implemented the international definition of trafficking in human beings do not always workas intended. Also, the fact that penalties for trafficking often already are quite high, although the crime persists, is often overlooked. Such advice tends to neglect the fact that laws on the books do not always equal law in practice. By contrast, this study acknowledges the law in practice by attaching importance to the specific context in which the international definition of trafficking is implemented. It takes into account variables such as perception, legal tradition, and language as well as the practical consequences that the implementation of the international definition of trafficking has had on individual countries.

This book argues that there is arguably no adequate international definition of trafficking. The present definition is reproduced in both international law and national legislation, making an already troublesome situation even worse. Despite the importance of the topic, it has not been extensively researched. The present book conducts a critical legal analysis of the wording of the international definition of trafficking and puts those findings in context by discussing the implications that this definition has had on national laws, a novel approach in the study of trafficking.

Purpose and Research Questions

Although trafficking does not always involve an element of border-crossing and many countries also suffer from so-called internal trafficking, the crime often involves at least two and sometimes several states. The fact that the Palermo Protocol requires states to criminalize all forms of trafficking in human beings while international cooperation and victim support are optional objectives indicates that prevention by harmonizing laws is considered one of the main tools in the fight against human trafficking. The question of countering trafficking by means of the harmonization of national criminal laws is therefore essential. However, although trafficking laws are harmonized, there are very few trafficking convictions.

The main research question is why, despite international anti-trafficking efforts, there are so few trafficking convictions worldwide. The purpose is

Dominika Borg Jansson - 978-90-04-28107-3 Downloaded from Brill.com04/05/2019 09:10:46AM via free access to evaluate the international definition of trafficking by means of which national laws in this area are harmonized. A secondary purpose is to discuss what actually happens when states agree to create and implement a common definition of a crime. The distinction between first and secondary purpose is artificial as both purposes are linked to one another. However, this division is useful for the overall structure of the study. The underlying argument is that although a country’s definition of a crime may be a verbatim transcript of the original legal source, a successful legal harmonization has not necessarily taken place.

This study examines two main areas, both covered by the umbrella concept of legal harmonization. Firstly, it concerns itself with the international definition of trafficking as set out in Article 3 of the Palermo Protocol. The definition is scrutinized from both legal and social perspectives. First, a critical legal analysis of the wording is conducted. Then, the wording is evaluated against the social practice of human trafficking and its realties. The question is whether the current international definition of human trafficking is satisfactory in terms of legal effectiveness and its sensitivity to the phenomenon itself.

Secondly, this work addresses the development that takes place on the national level after an international treaty has been implemented. It addresses the following question: Can we talk about the trafficking definition of the Palermo Protocol in terms of universality if we are not familiar with the results of its implementation in individual countries? I will attempt to answer this question by conducting country-specific analyses of the relevant laws of three state parties (Sweden, Poland, and Russia) to the Palermo Protocol.

In addition, the study contributes to the debate on international harmonization of law and legal transplants by discussing the shortcomings of national implementation and the problems that might arise when attempting to mend international dilemmas with unified criminal legislation. It indicates that the difficulties are not only internal in nature but also that certain problems can be attributed to the original source, i.e., there exist both country-specific and general problems with regard to international legal harmonization. The findings are also cause for reflection concerning what might be considered achievable or realistic where possible results of international harmonization are concerned.

To a certain extent, the findings of this work can be applied to other areas of criminal law where international harmonization takes place. However, the crime of trafficking in human beings is especially illustrative when discussing the importance of the roles that perception and language play in the field of legal harmonization. The potential success of legal harmonization is highly dependent upon attitudes and perceptions such as certain presuppositions or prejudices concerning the crime and its victims.

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National laws are harmonized on different levels and through various mechanisms. The next section will position this work in its relevant field by describing the process of international legal harmonization.

Harmonization of Criminal Law within the Context of Human

Trafficking

Contemporary criminal law does not fall under the exclusive competence of states.!2 Some experts argue that individual states no longer can handle recent developments such as globalization and organized crime on their own.! As a result of this development, national criminal laws have been subjected to several harmonizing measures. The EU member states, e.g., have been affected by this development on an EU level and on an international level. The world order no longer consists of states with uniformly sovereign legislation. Scholars increasingly speak of constitutional pluralism.' In some cases, international legislation prevails over national norms, while in others it is still unclear how rules, decisions, and outcomes stemming from international legal acts are to be interpreted in relation to each other and to national legislation, especially if they are mutually contradictory.

Under the premise that criminals might take advantage of differences between states’ criminal laws or favour countries that have lower penalties for organized crime, harmonization of criminal laws and increased penalties for organized crime have been advocated by the international community. Along with prevention and victim protection, prosecution is considered to be one of the main tools in the fight against human trafficking. It is achieved by ensuring

12 F.M. Tadic, “How Harmonious Can Harmonization Be? A Theoretical Approach Towards Harmonization of (Criminal) Law” in A. Klip, H. van der Wilt (eds.), Harmonization and Harmonizing Measures in Criminal Law, Proceedings of the Colloquium, Amsterdam, Royal Netherlands Academy of Arts and Sciences, December 2001, pp. 1-2.

13 J. Vogel, “Why is the Harmonization of Penal Law Necessary? A Comment” in Harmonization and Harmonizing Measures in Criminal Law, pp. 55-56.

14 See, e.g., N. Walker, “The Idea of Constitutional Pluralism’, Modern Law Review, vol. 65, NO. 3, 2002, p. 317.

15 Within the field of criminal law, this has become especially evident with regard to international sanctions related to terrorism. These are ordered on the UN level, reinforced at the EU level, and then ‘executed’ on the national level. See T. Andersson, I. Cameron, K. Nordback, “eu Blacklisting: The Renaissance of Imperial Power, but on a Global Scale’ European Business Law Review, vol. 14, no. 2, 2003 and I. Cameron, “European Union Anti- Terrorist Blacklisting? Human Rights Law Review, vol. 3, no. 2, 2003.

Dominika Borg Jansson - 978-90-04-28107-3 Downloaded from Brill.com04/05/2019 09:10:46AM via free access that states have adequate legal frameworks and appropriate criminal definitions of trafficking in human beings.!6 The Palermo Protocol is seen as a step in this direction as it is built around the concept of the three P’s: prosecution, prevention, and protection.

In addition to extended victim assistance, the EU Directive on trafficking replacing the Council Framework Decision 2002/629/JHA introduces tougher penalties for trafficking.” Compared to the Palermo Protocol, the directive has a more extensive area of application. It not only deals with criminalization but also with victim protection. It also refers to another directive!® concerning residence permits for those victims of trafficking and irregular migration who choose to cooperate with authorities.!9 The trafficking directive also refers to the Palermo Protocol as an important step “in the process of enhancing international cooperation against trafficking in human beings”.2° Moreover, the directive’s definition of trafficking is a verbatim transposition of the Palermo Protocol’s definition, perhaps the only exception being that forcing someone to commit criminal activities is explicitly set out in the directive as a form of exploitation.

Furthermore, the EU is required to build on the practice in this field stemming from relevant international acts, notably the United Nations Convention against Transnational Organized Crime (Palermo Convention) to which the European Community is bound by virtue of Council Decision 204/579/EC [3].7! Also, the EU and its member states are required to follow the principles of human rights of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Article 4 of the ECHR explicitly and without

16 See Opinion No. 7/2010 of the Group of Experts on Trafficking in Human Beings of the European Commission, “Proposal for a European Strategy and Priority Actions on Combating and Preventing Trafficking in Human Beings (THB) and Protecting the Rights of Trafficked and Exploited Persons’, p. 3.

17 Directive 201/36/EU of the European Parliament and of the Council of 5 April 201 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA.

18 Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to thirdcountry nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration and who cooperate with the competent authorities.

19 Paragraph 7 of Directive 2011/36/EU.

20 Ibid, Paragraph 9.

21 See Paragraph 6 of Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organized crime and also paragraph 9 of Directive 201/36/EU that makes direct reference to the Palermo Protocol.

Dominika Borg Jansson - 978-90-04-28107-3 Downloaded from Brill.com04/05/2019 09:10:46AM via free access exception prohibits slavery. The Council of Europe (CoE) defines trafficking in human beings in its own 2005 Convention on Action against Trafficking in Human Beings. Nevertheless, Article 4 of the document is almost a literal translation of Article 3 of the Palermo Protocol. As the legislations of the majority of the EU member states build on the aforementioned experience because they are signatories to those international acts and must follow them by virtue of their membership in the EU,?? Article 3 of the Palermo Protocol is the essential provision in discussing the international definition of trafficking.

The three countries studied in this work are bound by international law on trafficking on different levels and to varying degrees. Poland and Sweden have both ratified the Palermo Protocol and the ECHR (the international level). They are members of the EU which in turn has its own directive on trafficking in addition to being bound by the ECHR (the Eu level). Russia is only bound by international law by having ratified the Palermo Protocol and the ECHR. This distinction adds another factor to the analyses of the three countries.

Trafficking in human beings is a crime that affects several areas of state responsibility including security, migration, health, social security, development, education, labour, gender equality, and human rights. In consequence, international documents usually advocate a holistic approach when anti-trafficking measures are concerned. The question is whether the definition of trafficking in the Palermo Protocol corresponds to this approach. Even more importantly, the question is if the definition is consistent with the developments that the trafficking phenomenon has undergone.

Two important developments within this area are that traffickers allegedly have become less violent in their contacts with potential victims and that women traffickers have become more common.?? Traffickers abuse people’s vulnerability, e.g., political instability and/or economic distress. In such circumstances, violence as an additional means of coercing someone into exploitation is often not necessary. The question is, however, if this constitutes a real change or a change in perceptions brought on by our increasing knowledge of the crime.

22 See, e.g., Paragraph 2 of the Opinion No. 6/2010 of the Group of Experts on Trafficking in Human Beings of the European Commission “On the Decision of the European Court of Human Rights in the case of Rantsev v. Cyprus and Russia’, 22 June 2010.

23 “Knowledge Product. Trafficking in Human Beings in the European Union’, 08 oc Networks in South-East European Sphere O2 Analysis and Knowledge, Europol Public Information, the Hague, 1 September 201, p. 11. See also “Människohandel för sexuella ändamål”, Lägesrapport 13, RPS Rapport 2012, pp. 14-15.

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While the trafficking of women and children for sexual exploitation is still one of the more predominant forms of trafficking,?+ the phenomenon is constantly expanding and adapting to new circumstances. The traffickers of today tend to operate on a lesser scale than they did a decade ago. Largely gone are the big cells in which a broad and in principle dispensable base was ruled hierarchically by a small number of key actors.?°

Nowadays, flexibility seems to be the modus operandi. A person can be brought to a country as a migrant worker. Indebted to the trafficker, the person is then forced to work off his debt for little or no compensation, often under poor working conditions. The same person can then be used in order to commit welfare benefit fraud, a new form of trafficking that seems to be on the increase.2° Others might be forced to beg and to commit petty theft.

To get the current international definition of trafficking in line with the development referred to above would be a step in the right direction. However, it is important to note that a legal amendment alone will not solve the trafficking problem. Simply put, there are arguably certain disadvantages to a view on international cooperation that focuses exclusively on criminal law measures. By paying too much attention to unified criminal legislation, actual international cooperation might become an issue of secondary importance. This is already evident in the Palermo Protocol, according to which the implementation of criminal provisions is obligatory while international cooperation is only an optional measure. This implies that anti-trafficking efforts are mostly focused on the law on the books as opposed to law in practice. If efforts are predominantly focused on the harmonization of criminal laws, the evaluation of these laws might be neglected by the international community, especially as there are few mechanisms of control.

The former Polish trafficking law will serve as an example. The law in question was drafted in order to meet international requirements. However, the Ministry of Interior noted that in many cases the courts had decided to impose

24 “Global Report on Trafficking in Persons’, 2009.

25 Presentation by Gert Bogers, Seconded National Expert in the European Commission in DG Home Affairs in the Unit Fight against Organized Crime, specifically working in the area of trafficking in human beings since July 2010 during the Third Annual International Symposium on Preventing Human Trafficking, held on 24 November 2011 in Brussels.

26 According to a report from Europol, welfare benefit fraud is likely to expand even further. This is primarily due to the relatively large profits that it generates where a single trafficking group can get 125,000 Euro per month and the low levels of perceived risk of detection. See “Knowledge Product. Trafficking in Human beings in the European Union’, 201, P. 14.

Dominika Borg Jansson - 978-90-04-28107-3 Downloaded from Brill.com04/05/2019 09:10:46AM via free access conditional suspension of sentences.?’ Such circumstances are rarely visible in international statistics. Countries usually report on whether or not a certain law is in place and sometimes also on the number of convictions carried out in accordance with that law but rarely on the details of the penalties imposed. If trafficking is to be practically treated and not just described as a grave offence and the ratification of the Palermo Protocol as a first step in a particular country’s fight against the crime, then the subsequent evaluation must go beyond analysing the law on the books. We must therefore inquire if and how the country has ratified the original source both in terms of the end result, i.e., the legal transplant, and the practical application thereof.

On the surface, a country might meet the requirements set forth in the relevant international treaty. Under the surface, however, problems may abound. For example, if sentences for trafficking are suspended it might be called into question whether the grave nature of the crime is fully mirrored in case law. The question is what the implications are for the application of provisions concerning other serious crimes as well as the overall credibility of criminal law. Such a development also stands in contrast to international obligations as the Palermo Protocol requires states to not only criminalize trafficking but also to incorporate into their relevant provisions and the application thereof the spirit of the protocol. The latter requires states to, among other things, make an effort to effectively and adequately prevent human trafficking and to impose proper and proportional penalties. In addition, “states shall effectively investigate, prosecute and adjudicate trafficking, including its component acts and related conduct, whether committed by governmental or by non-state actors”.?8

The fact that a country has consented to become a party to the Palermo Protocol and perhaps even set up a national agency in charge of trafficking issues is too often seen rather uncritically as a sign of positive development. In an official United Nations Development Programme (UNDP) note, Moldova, Romania, and Albania are applauded for establishing national counter-trafficking policies and programs.?9 Although such efforts deserve to be recognized, there is also a danger in interpreting them as a concrete ambition

27 U. Kozłowska, “Analiza statystyk dotyczących zjawiska handlu ludźmi” in Handel ludźmi w Polsce. Materiaty do raportu 2009, Warszawa, Ministerstwo Spraw Wewnętrznych i Administracji, 2009, p. 44.

28 “Recommended Principles and Guidelines on Human Rights and Human Trafficking”, Report of the United Nations High Commissioner for Human Rights to the Economic and Social Council, E/2002/68/Add.1, Paragraph 13, p. 42.

29 “Trafficking in Human Beings. A Guidance Note”, UNDP, Europe and the cis, Bratislava Centre, September 2004, p. 6.

Dominika Borg Jansson - 978-90-04-28107-3 Downloaded from Brill.com04/05/2019 09:10:46AM via free access to act. Again, there is a step between making a law and acting in accordance with that law.

According to one of the internationally more authoritative sources on trafficking in persons, the us State Department Trafficking in Persons Report (TIP ),3° Poland, e.g., was — and still is — placed on Tier 1 of three, which is the best.3! Such a placement suggests that the Polish trafficking legislation at that time corresponded to international standards and that the country had taken decisive steps in order to combat trafficking. Although Poland had signed the Palermo Protocol and established a national counter-trafficking plan, some Polish legal scholars considered their former trafficking laws to be flawed. The provision dealing with trafficking specifically was said to be vague, as a result infringing on principles of legality, equality before the law, and legal certainty.” The case law from Polish courts where this law was applied seems to validate the critics’ concerns as the trafficking legislation was sometimes applied arbitrarily, yielding varying results in different courts and regions of the country. Despite all of this, the country was still considered good enough to be placed on Tier 1.

Russia provides another illustrative example where the potential danger of having too much faith in the implementation of the Palermo Protocol's definition of trafficking is concerned. In 2003, probably due to the country’s consenting to become a party to the Palermo Protocol in 2000 and ratifying it in 2004,33 Russia was elevated from the worst placement of Tier 3 to Tier 2 in the TIP Report. It was then said that “[t]he Government of Russia does not fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so’.3+ The same passage could then be read every year, from the first time it appeared in 2003 to the version of the report dated 2008. It was not until 2009 that Russia was taken off its Tier 2 placement and moved to the Tier 2 Watch List. The latter placement applies to countries

30 The TIP Report is a general overview of trafficking worldwide. It also evaluates states’ efforts in this area. It is published yearly by the us State Department and constitutes an influential tool where international lobbying in the area of trafficking is concerned.

31 “Poland”, TIP Report, 2013, pp. 303-305. Countries are rated according to their national anti-trafficking efforts and placed on different tiers ranging from 1 to 3, where tier 1 is the best.

32 E. Zielińska, “Zakaz handlu ludźmi w polskim prawie karnym” in Z. Lasocik (edt.), Handel ludźmi. Zapobieganie i ściganie, Warszawa, Katedra Kryminologii i Polityki Kryminalnej IPSiR Uw, 2006, pp. 226, 228.

33 E.V. Tiurukova and the Institute for Urban Economics for the UN/10M Working Group on Trafficking in Human Beings, “Human Trafficking in the Russian Federation. Inventory and Analysis of the Current Situation and Responses’, Moscow, 2006, p. 7.

34 “Russia’, TIP Report, 2003.

Dominika Borg Jansson - 978-90-04-28107-3 Downloaded from Brill.com04/05/2019 09:10:46AM via free access that do not fully comply with the minimum standards for the elimination of trafficking but are making significant efforts to do so. Although they are making some efforts, either the number of trafficking cases in these countries is very high or significantly increasing or the government is failing to combat trafficking or further steps are needed in order for the country to improve its placement.

The picture sketched above suggests that although it might be easy to make assumptions based on supposed efforts such as consenting to international documents or the establishing of certain polices, this does not necessarily mean that these assumptions are true. In some cases, efforts are simply about paying lip service. Sometimes, the value of such international evaluations can also be questioned.

As will be illustrated in the subsequent sections, attempts to create an international definition of trafficking are further complicated by the fact that we are not dealing with a physical object such as a table but instead with an entirely social and linguistic construction, i.e., a crime or rather the constituent parts of a crime. The definition affects national criminal laws which traditionally have been considered to fall under the exclusive competence of states.

Although this book studies the criminal provisions on trafficking, it is important to note that criminal law alone will not stop trafficking. The questions raised in this section will be revisited in following chapters, most notably Chapter 4, where the international definition of trafficking is scrutinized. In the following section, various ways in which trafficking is conceptualized and different approaches to studying the phenomenon are addressed.

Approaches to the Study and Conceptualization of Human Trafficking

Since trafficking affects so many issues ranging from migration to human rights, there are different approaches to how to study the crime. Some of the central approaches are addressed here. The author also comments on how these relate to her work.

Research on trafficking in human beings usually focuses on some aspect(s) of trafficking as a social phenomenon. It is viewed either as a matter for the social sciences or as the subject of a legal inquiry pertaining to the more narrowly defined crime of trafficking.*> Only rarely is it perceived as being both.

35 See, e.g., A. Gallagher, “Human Rights and the New uN Protocols on Trafficking and Migrant Smuggling: A preliminary Analysis’, Human Rights Quarterly, vol. 23, 2001 and

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Legal commentaries on criminal law usually include concise legal analyses of the relevant provisions while most writings on trafficking as a social practice focus on the social characteristics of the phenomenon.** In the latter case, a reference is sometimes made to relevant legal provisions. At times, a definition of trafficking might be included in the text. This definition is, however, rarely elaborated upon further. However, the legal and social aspects of trafficking in human beings should not be viewed in isolation from each other. This work will therefore include both.